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How Small Tech Companies Can Protect Big Ideas

When the tech giants of the world roll out features that are remarkably like those dreamed up by smaller firms, we get to wondering: How much of a good idea can a tech company protect? We talked to patent, intellectual property, and computing experts to find out.

There's a brilliant new social networking feature that will blow you away. With just a few clicks, you can see a complete history of your online interactions, view photos and videos you took years ago, and even check long-forgotten messages from friends and family.

It may sound like I'm talking about the new Timeline feature in Facebook, which CEO Mark Zuckerberg recently revealed. Instead, the company I'm talking about is i-Postmortem, a small startup in Palo Alto, Calif. It owns the site, i-Memorial, which lets you post photos, messages, videos, and more as a record of your life. (A companion site, i-Tomb, is meant to remember the recently deceased.)

The similarity might seem suspicious, especially because i-Postmortem tells PM that it met with Facebook several months ago to show off its service. And two more of Facebook's recent additions bear striking similarities to its competitors' features. The 800-million-user social networking site has included a Friend's List, which helps you track specific groups of people, a lot like the Circles feature in Google+. Facebook also uses a Twitter-ish live status feed called Tracker, which shows you exactly what your friends are doing in real time so you can participate with them.

But things are not so simple. First, for the record, i-Postmortem's spokesperson tells PM that its meeting with Facebook was a great one, and that it isn't concerned about the similarity: The timeline-of-your-life idea is starting to appear in a number of places, and different versions of the same, or closely related, ideas show up all the time. And Facebook is far from being the only tech giant dealing with these questions. Apple, for instance, will be releasing the new iPhone this week, and the last time we heard from the Cupertino clan, it was rolling out a new version of its OS containing a feature that's remarkably like the read-it-later app Instapaper.

All the examples make us wonder: How much of a great idea can a firm—especially a small one—protect from being copied? Facebook, Google, Microsoft, and others declined to comment for legal reasons, so PM consulted with copyright, patent, and intellectual property attorneys, as well as computing experts and user interface (UI) design gurus, to find out just how new features at a website, or in software and new hardware products, can be protected, and what is fair game. "A lot of companies are not doing a good enough job protecting their IP," says consumer analyst Rob Enderle from the Enderle Group.

What Can You Protect?

Repurposing online ideas—for example, a site adding a feature for a daily coupon deal even though Groupon.com popularized the concept—is commonplace, something Enderle calls "content mining for ideas." It's kosher, the experts tell PM, because you can't protect an idea, but only the implementation of the idea. That includes the graphics, brands, logos, wording, and the functionality of a new feature—the intellectual property.

Katy Basile, a partner and trademark practice chair at the law firm Novak Druce and Quigg, explains the basic mechanics of protecting an idea. A patent, she says, is what protects the physical object or design that emanates from an idea. Apple secured a patent for a particular screen technology on the iPhone, for instance, but it couldn't patent the very idea of a touchscreen. A copyright protects the expression of an idea, usually in creative form. (Software, though, is patented rather than copyrighted, a fact that is the source of many tech lawsuits, patent grabs, and controversy.) That means a copyright is used to protect the description of an idea or even the words used at a website. A trademark protects the representation of a good or service. The startup chime you hear when Microsoft Windows starts and the Google logo are trademarks. So is the name "Facebook" and any others that are "non-obvious." (Although, interestingly, Facebook is facing a suit by Timelines, Inc. It runs a site that shows the historical happenings for the current day of the year, and it claims Facebook's choosing of that name is trademark infringement.)

Back to the Facebook Friends List example. Friend-grouping features have existed in Facebook since 2007. The Friend's List just makes this easier, and a side panel shows existing groups. It's also easier to post a message only to members of specific groups—say, close friends or acquaintances—which was one of the things users love when they discover Google+ Circles. However, Basile says, Facebook was not stealing the Google Circles idea, if for no other reason than that you can't protect a concept like "group my friends so I can track those relationships." It's too vague. If Facebook had named the new feature Circles, or had designed an interface using the same code or the same graphics, that would be infringement, Basile says.

So abstract ideas can't be protected, though clear copyrighted or patented material can be (in theory). But there's a also a hazy middle ground, because the implementation of an idea can be protected—though demonstrating how that idea is implemented, or proving that you have implemented the idea, can be a challenge.

If that sounds abstract, here's an example you're familiar with: the homepage design of Google.com, featuring the logo and a simple search box. Google actually has a design patent on that layout, according to Manhattan-based intellectual property attorney Marc Misthal with the law firm Gottlieb, Rackman and Reisman. Still, many companies copy it, he says, though no site could get away with copying the exact layout.

Another telling case is that of the apps that apply tones to your photos. The iPhone app Instagram earned a legion of devotees through its simple approach. But, Misthal says, the idea of applying tones to a photograph cannot be protected, which is why so many apps provide this service. In fact, even applying a specific tone such as sepia is not protectable, he says, because numerous apps now offer that feature. Instagram, however, could protect its unique tonal adjustments such as Amaro tone or Lomo-fi. (Instagram declined to comment on which specific patents it has secured for its app.)

How to Protect It

Paden Woodruff, an intellectual property and antitrust lawyer with Woodruff & Black, says companies should protect their ideas, especially against the tech giants who may go on the prowl and adopt features that are not protected. He says the most common approach to protecting user interface features is to secure a patent. Patents can cover the specific functions in a smartphone app, online service, or desktop program. These features must be novel, nonobvious, and provide a unique process, he says.

Thomas Galvani, a patent and trademark attorney with Parsons and Goltry, says another approach would be to secure trade dress protection in the visual appearance of the site as a whole or in distinctive aspects of it. The Google+ site design—with logos along the top of the screen, Circle categories on the left, and notification icons on the upper right— could likely be protected by trade dress, and the system underlying the operation of those features might be protected by patents.

The war over interface design features may seem unwinnable, especially for small firms that may find themselves at odds with a tech giant. Yet, all of the experts we talked to say smaller companies often have an advantage if they have taken the time to secure patents and trademarks. If Instagram found that some tech giant had borrowed one of its specific tonal adjustments and that it had a patent for that feature, the company could use a David-versus-Goliath approach to fight for the patent.

"If a smaller company has a good case in terms of the IP it owns and will be damaged by what the other company has done, then action should be taken," Basile says. "The patent, copyright, and trademark laws all have teeth. Our legal system can be time-consuming and costly, so a small company will have to balance the costs and risks against the benefits, but in this case, size alone should not be the determinative factor. Having a big adversary can work to the small company's advantage." In fact, Misthal says, smaller companies might be able to avoid some court expenses simply by acting aggressively early on in fighting for their patents and trademarks; they then develop a reputation for protecting what they own.

Finally, you simply can't protect everything. i-Postmortem says it's fine with Facebook's use of a timeline feature, which is probably good, because similar features are emerging everywhere. And no one can patent, copyright, or protect an industry norm.

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